Many people through their Wills leave gifts to hospitals, hospital foundations and other charities. However, sometimes these organizations no longer exist when that person dies as they did when the Will was made. For example, when hospital amalgamations occur, the original hospital named in a Will may not be operating in the same way at the time of the person’s death. In these cases, questions arise regarding whether the gift fails. The case of Re Leer is an example of how Courts will deal with these types of situations.
In Leer, the deceased left the residue of her estate to a hospital for designated use being 80% for the purchase and/or maintenance of diagnostic equipment and 20% for the use of Physician Relief Locums. However, the gift was condition upon:
- the hospital operating at the time of her death; and
- written assurance that the hospital remain operating for at least two years.
If these conditions were not met, her Will provided that the gift would go to two other organizations.
At the time the deceased wrote her Will, the hospital operated as part of the Twin Rivers Health District. However, at the date of her death, responsibility for that entity and facility had passed to the Prairie North Health Region. In addition, the facility was converted from a “hospital” to a “health centre”. Notwithstanding this conversion, the same on-site physician and diagnostic services continued to be provided at the health centre. Unfortunately, no written assurance could be provided that the facility would remain in operation for two years from the deceased’s date of death since the decision was dependent upon government financial approval which in turn depended upon the ability of the Health Region to provide physician, nursing and diagnostic services on a continuous basis.
When a bequest is made to a non-existent institution, the Court must decide whether the deceased’s intention was to make a general charitable gift or a gift to a particular charity. In this case, as no evidence was introduced as to the deceased’s wishes, her intention had to be derived from the wording used in her Will.
The Court noted that the conversion from Twin Rivers Health District became the Prairie North Health Region after the deceased made her Will, but before she died. Had she been concerned with benefiting the actual operator rather than the facility, she could have changed her Will. The Court ultimately held that the deceased had a definite purpose in mind when she made her Will: that her health care bequest be used at the designated facility for a specific purpose. In the result, the Court ruled that the true intention of the deceased was that if the facility continued to operate for two years following her death, the gift would not fail and that her intention should not be frustrated by the legal inability of the Health Region to provide “written assurance” that the facility would remain open for at least two years following her death. Accordingly, the Court reformed the deceased’s Will to reflect her true intention.
This case demonstrates that a gift to an organization will not automatically fail if the organization no longer operates in the same way it did at the time a Will is made. The true intentions of the deceased will always be looked at closely to determine to whom the gift should be given.
 2005 SKQB 276 (CanLII).